Will Deck

Question 1

Inheritance

Answer 1

die without a will, property goes to your heirs at law

Question 2

Non-probate transfers

Answer 2

joint tenancy with the right of survivorship, trusts, k’s such as insurance policies, bank account set up payable on death/transferable on death

Question 3

Probate administration

Answer 3

process of wrapping up debts, distributing property

Question 4

Intestate

Answer 4

dies without a valid will or a valid will which fails to dispose of all property

Question 5

Consanguinity

Answer 5

descendant or you share a common ancestor, related by blood

Question 6

Affinity

Answer 6

married or spouse of one is related by consanguinity/blood (spouse is the only one of her inheritance, step-children not covered in this state, no one else related by affinity)

Question 7

Heirs

Answer 7

someone who takes when someone dies

no living person has heirs, only heirs apparent

Question 8

Ownership

Answer 8

Who owns it upon death

Question 9

Occupancy

Answer 9

children cannot take from spouse. Death, abandonment, or sell enable children to act. Occupier must pay interest on the mortgage and taxes

Question 10

Parentelic System

Answer 10

remote ancestors divided between father and mothers side

Question 11

Does an attorney owe a duty of care to the beneficiaries of a client’s will or trust?

Answer 11

No… unless the attorney also represents the beneficiaries, duh

Question 12

If your firm represents a husband and wife and another woman who has a child by the husband, what may the firm disclose to the wife?

Answer 12

MAY disclose that another child exists but cannot reveal the other woman’s identity.

Question 13

What happens when a husband and wife die simultaneously?

Answer 13

If there is no sufficient evidence of the order of deaths, each was deemed to have predeceased the other, so neither inherited from the other.

Question 14

120 hour rule

Answer 14

If the beneficiary does not survive the decedent by 120 hours (5 days), they are treated as if they predeceased the decedent.

Question 15

Can an adopted adult inherit from a biological parent?

Answer 15

Nope

reasoning - adopted adult made the choice

Question 16

Can a beneficiary inherit if they were “virtually” adopted?

Answer 16

Nope, no authority to enter into adoption contract

Question 17

What is Posthumus Child?

Answer 17

Child that is conceived while the father is alive, but the father dies before the child is born

Question 18

When can a Posthumus child inherit?

Answer 18

If the child is born anytime after that father’s death

Question 19

What determines paternity?

Answer 19

Any child born within 301 days (10 months) of the death of the father or dissolution of a marriage, the child is presumed to be born to the married couple

Question 20

How do you determine if a posthumous child who is the result of artificial insemination can receive social security benefits if there genes can be traced to the alleged father?

Answer 20

Three Part Test:

1. Interest of State in orderly administration
2. Interest of Child
3. Interest of Decedent

Question 21

Freedom of Disposition policy arguments

Answer 21

Should we restrictions on a persons ability to control their property?

What about being too controlling?

Question 22

When are restrictions in a will not valid?

Answer 22

When it goes against public policy.

Example: Quaker owning his daughter to only a man in that area - not a good selection size

Counter Example - Dad restricted son from marrying specific woman - can marry anyone else on earth

Question 23

Can a will force a religion on someone?

Answer 23

No

Question 24

Can a court change a restriction in a will to make it more palatable?

Answer 24

No, they will either leave it in or take it out

Question 25

If an attorney messes up drafting a will and admits it, can the judge change the contents of the will? Can the beneficiaries sue the attorney?

Answer 25

No Can't sue attorney in Texas - Attorney does not owe a duty to the persons intended to benefit - fear of unlimited potential liability - attorney would be conflicted between desires of testator and beneficiaries

Question 26

Does a firm have a legal duty to inform the wife, when her money could technically be given to the husband's child?

Answer 26

They don't have to but may.

Question 27

Requirements for mental capacity?

Answer 27

Must be 18, married or military Must be of sound mind

Question 28

Sound mind?

Answer 28

Being capable of knowing and understanding in a general way: - that you're making a will - nature and extent of property - who the beneficiaries are - what their disposition is - overall be able to understand who is getting what does not have to know everything

Question 29

Who can challenge a will if there are concerns of mental capacity?

Answer 29

Any interested party may contest the will

Question 30

What's the statute of limitations on challenging a will for mental capacity in texas?

Answer 30

2 years after probate or 2 years after the date the fraud or forgery is discovered

Question 31

Insane Delusion

Answer 31

A false conception of reality. When someone is presented with evidence and they still do not believe it to be true. In Texas - no insane delusion if there is ANY factual basis for the belief. Doesn't take much

Question 32

A contestant to a will made under insane delusion must show what?

Answer 32

1. there is an insane delusion | 2. the insane delusion caused the disposition made in the will (direct link)

Question 33

What does it take to revoke a will in Texas?

Answer 33

1. in writing 2. physical act with intent to revoke 3. must follow formalities

Question 34

What happens when Will 1 says "everything to A" but Will 2 says "Leave the car to B"

Answer 34

Will 2 will be considered a codicil to Will 1. A will get everything but the car.

Question 35

What happens when Will 1 says "everything to A" but Will 2 says "Leave the car to B". Then the testator tears up Will 1.

Answer 35

Goes to probate. Will 2 was codicil of Will 1 As the original Will was revoked, all codicils are revoked with it.

Question 36

Can a written revocation on the back of a will that does not otherwise comply with statutory requirements for revocation by cancellation effect its revocation?

Answer 36

No, it must be on the writing or "this will is void" Has to deface it.

Question 37

What happens if the testator dies and the will cannot be found?

Answer 37

The will is presumed to be revoked.

Question 38

Can a testator revoke a will by destroying a photocopy of it?

Answer 38

Nope.

Question 39

How is the presumption that a lost will was destroyed?

Answer 39

Preponderance of the evidence standard Ex: Fire destroys will, omitted heir is the first person to enter burned house

Question 40

What happens in Texas if the a will leaves A the car and everything else to B, but the testator crosses out A?

Answer 40

Not valid, release case to probate. A still gets car

Question 41

What does a valid execution of a will require?

Answer 41

(1) testator must be 18 years old, married, or in the armed services (2) written and signed by the testator (3) signed by at least 2 competent witnesses

Question 42

What does it take to prove testamentary intent?

Answer 42

(1) understands the nature of what she's doing (2) knows the nature and objects of her bounty (3) knows the nature and extent of property (4) understands her disposition